Public Bill Committee

[Mr Jim Dobbin in the Chair]

Clause 21  - Power to make orders

David Hanson: I beg to move amendment 28, in clause21,page11,line21,leave out from ‘persons’ to end of line.

Jim Dobbin: With this it will be convenient to discuss the following:
Amendment 29, in clause21,page11,line34,after ‘team’, insert ‘and relevant neighbourhood policing team’.
Amendment 30, in clause21,page11,line37,leave out from ‘must’ to end of line 2 on page 12 and insert ‘take into account an assessment of—
(a) any religious beliefs the offender may have; and
(b) the offender’s work, school or other educational commitments.’.
Amendment 50, in clause21,page11,line39,at end insert—
‘(aa) any conflict with the offender’s caring responsibilities including, in particular, any caring responsibilities for a child.’.

David Hanson: It is a pleasure to serve under your chairmanship this morning, Mr Dobbin. You missed a very interesting session on Tuesday. We had a good discussion, with a lot of cross-party agreement on a number of issues. I welcome the Minister for Policing and Criminal Justice, who joins us in the Committee today.
I will let you in on a secret, Mr Dobbin. My amendments are not meant to cause difficulty for the Government; I simply want to test them. In a spirit of helpfulness, we do not intend to press them, but I want the Minister to consider the issues they raise. We want to know what the Government’s thinking is on several important issues relating to criminal behaviour orders.
Amendment 28 probes the court’s power to make a criminal behaviour order against an offender. Clause 21(3) sets out the first of two conditions for the criminal behaviour to be considered:
“The first condition is that the court is satisfied that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons…not of the same household as the offender.”
The amendment seeks to test the premise that a criminal behaviour order cannot be made against anybody who is of the same household as the victim. I will return to that point.
Amendment 29 relates to subsection (8), which states:
“The prosecution must find out the views of the local youth offending team before applying for a criminal behaviour order to be made if the offender will be under the age of 18”.
The amendment, to test the Government and to generate discussion, states that the views of the local neighbourhood policing team should also be considered. I accept that “neighbourhood policing team” is not the tightest legal phrase. However, I want to test the principle of the subsection by asking the Minister whether the police should be involved in addition to the youth offending team. I will return to that point.
Amendment 30 aims to tweak the practicalities relating to the
“prohibitions and requirements in a criminal behaviour order”,
which must avoid conflict with the offender’s “religious beliefs”, and their attendance at work,
“school or any other educational establishment”.
I will return to that point shortly.
Amendment 28 questions whether we should allow criminal behaviour orders to be made against offenders who are of the same household as the victim. I want to test the Minister on whether behaviour that causes
“harassment, alarm or distress to one or more persons”
should also include what happens in the household. I anticipate that the Minister’s response will be that that is the wording of the current legislation. I accept that; I know it was passed by our Government in 1998. However, 1998 is 15 years ago, and things have changed since then. A number of issues have emerged, such as Twitter, Facebook, mobile phones and e-mails, which potentially relate to the home.
I simply want to get from the Minister an assessment of whether the stipulation in subsection (3) that a person should be
“not of the same householder as the offender”
is still applicable. If that phrase were deleted, as the amendment seeks, it would mean that if the court was satisfied that the offender had
“engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons”,
be they in or outside the household, the criminal behaviour order could be applied.
Why do I ask for that to be considered and reflected upon? First, let me give the Minister a scenario. Let us look at elder abuse and the legislation that could be applied. Let us use the example of a grandson who has been thrown out of the parental home or is homeless. He turns up at his grandparents’ house having committed antisocial behaviour all over the town and forces his way on to their sofa for several weeks. In the household—I would welcome a definition in the Bill of household—he causes intimidation, harassment, alarm and distress to one or more persons. He might be trashing the house. He might be committing antisocial behaviour externally and internally. If that was happening, a punitive sanction could be applied, but would it be caught by clause 21(5)(b), which
“requires the offender to do anything described in the order”?
A requirement could be that the offender does not live at 21 Acacia avenue where the grandparents are. A requirement could be that the offender attends a drug rehabilitation course or an alcohol-related course. I want the Minister to explain what household means here and why the clause does not apply to the household.
Let me give another example. Clause 21(1) states:
“This section applies where a person (‘the offender’) is convicted of an offence.”
Let us say that a son with an alcohol, drug or other problem steals money from the parent in the property. He is in the household. He is an offender. There may be antisocial elements. He might be playing his music very loud in the property. He might be mentally unwell and spraying graffiti all over the inside of the property. Under the current legislation, as I read it and I may be wrong, no action could be taken. But in fact a CRASBO—a criminal behaviour order—as I will still call it, could be applied to the individual and because the offences are all committed in the house the individual could be required to attend drug rehabilitation, alcohol rehabilitation, or be banned from the premises for a period. A range of orders could be applied. I simply want to get a flavour of where we are.

Sarah Champion: I should like to give two examples to support my right hon. Friend’s point. My nephew moved into my grandmother’s house. He was stealing from her and terrifying her. My aunt would not do anything. My parents went to the police who said they could not do anything because it was in a private household; it was a family member so they could not intervene. I have people coming to my surgeries. They tend to be single women whose sons are being incredibly abusive towards them and are robbing them. Again, the police will not intervene because it is a private household matter. It is vital that the police can act when it is within a household.

David Hanson: I am grateful to my hon. Friend for supporting my arguments; again, we test the Minister and the premise. The Minister may well say that there is a range of measures that could deal with that scenario, but I want him to tell us what those measures are and whether removing that element of the Bill would provide some additional powers.
Let me give another example. Recently there was a report in the press—it was in the Daily Mail so it must be true—that a Mr Frankie Fraser had received an ASBO in a care home in Kent. As the Committee may know, Mr Fraser goes by the soubriquet “Mad,” and served 42 years in jail for various crimes. He received an ASBO because of his offensive behaviour towards other residents of his care home who questioned whether pulling people’s teeth out on behalf of the Krays was a good idea. Mr Fraser demonstrated that he still has disruptive tendencies and so he was given ASBO. Under criminal behaviour orders, we find the phrase
“not of the same household as the offender.”
What is a household? Is Mr Fraser’s care home his household? If he is causing
“harassment, alarm and distress to one or more persons”—
and in this case he self-evidently was, as he was given an ASBO—does the reference to “the same household” mean that the provisions could never apply to somebody in a care home, such as Mr Fraser, as that care home would be his household? It is a reasonable question and I ask it simply for clarification from the Minister.
This is not a question of political divide; I am not saying, “Tories bad, Labour good.” The issues are important and we need to test them. Ultimately, this tool could have a punitive element, but could also place a restorative, reforming and genuine requirement on the offender that could lead to their behaviour changing. I want to probe whether the wording means that their behaviour cannot be changed in the home if they happen to share the household, however that is defined, with the person they have harassed.
Amendment 29 relates to provisions for those under the age of 18. Subsection (8) states:
“The prosecution must find out the views of the local youth offending team before applying for a criminal behaviour order to be made if the offender will be under the age of 18 when the application is made.”
That is a sensible provision, which I do not oppose: the youth offending team will have a comment about what provisions should be put in place. However, the neighbourhood policing team—the local police force—will have an interest in such a case, because its work will probably have led to the conviction for the offence. The youth offending team is local authority-led; it will consult the police, but it is not the police. Whether or not “neighbourhood policing team” is the right phrase—“chief constable” or “police and crime commissioner” might be better—the principle underlying the amendment is this: when the police have gone to all the trouble of getting the offender to court and securing a criminal conviction, and when the court has said that there should be a criminal behaviour order and then, because the offender is under 18, has consulted the youth offending team, I believe the police should also have a role. The police should be able to say, “This is the history of our involvement with this individual; this is what they have done and why we have brought the case; here is a bit of background to the situation.” They should be able to tell the court whether they think the conditions it is seeking to apply will or will not help. That is a reasonable position, and I am interested in the Minister’s comments.
Amendment 30 probes the provisions in subsection (9):
“Prohibitions and requirements in a criminal behaviour order must, so far as practicable, be such as to avoid…any conflict with the offender’s religious beliefs…any interference with the times, if any, at which the offender normally works or attends school or any other educational establishment…any conflict with the requirements of any other court order or injunction to which the offender may be subject.”
Those are reasonable provisions; but—again, my amendment is simply to test the Minister’s views—I question the way in which they are phrased. The subsection states that the requirements must
“so far as practicable, be such as to avoid”.
If someone has a conviction that leads to a criminal behaviour order, by and large, they have done something wrong; I am generalising, but I would expect that they will also have a tendency to test the system. The Bill states, first of all, that we should avoid any conflict with an offender’s religious beliefs; in that case, what is to stop me saying that I can prove I am Jewish and therefore can do nothing on a Friday, or that I am Muslim so I can do nothing on another day of the week, or that I go to Church class every Wednesday so I need time to do that?
The Bill says
“so far as practicable, be such as to avoid”.
My amendment simply says
“take into account an assessment of”
the same issues. People’s religious beliefs and work and education commitments should be assessed and other court orders should be examined, but they are not grounds not to apply the criminal behaviour order. The assessment may deem them to be such grounds, but
“so far as is practicable, be such as to avoid”.
should not necessarily apply. I believe that
“so far as is practicable”
means that I could test the prohibitions and requirements by standing up in court and making a series of statements that prove that
“so far as is practicable to avoid”
should apply. Under my amendment, the issues would be assessed and taken into account, but the court decides, not the offender. Ultimately,
“so far as is practicable, be such as to avoid”
should not apply, because offenders could say, “I can’t do Fridays, because I’m Jewish. I can’t do Mondays, Tuesdays and Wednesdays, because I am at work. I can’t do 3.15 pm or 4.15 pm, because I am at school. I already have a court arrangement on Monday. As far as is practicable, all that must be avoided, so I want to do it over the next several periods of time rather than in a much tighter framework, because those things must be taken into account.” The Minister should look at the provision and check whether it is tight enough and whether an assessment could be made, rather than ruling it out altogether.
I am sure that amendment 50 will be marvellously interesting. I will not comment on it until my near neighbour in office terms, the hon. and learned Member for Sleaford and North Hykeham, makes his comments. I do, however, reserve the right to comment once he has finished.
I hope the amendments are seen for what they are, which is an attempt to be helpful and constructive and to test. I look forward to what the Minister has to say about them.

Stephen Phillips: It is an enormous pleasure, Mr Dobbin, to spend another Thursday in your company, serving under your chairmanship. I also thank you for the selecting the amendment as it was tabled late.
We had the exact same debate on an amendment on Tuesday, which the Government did not accept, but on which there was no Division. Amendment 50, which was tabled by me and my hon. Friends the Members for Chatham and Aylesford, for North East Cambridgeshire and for Bedford, is designed to bring clause 21 into line with clause 1 as it now stands. The point, which I also made on Tuesday, is that, in common with an injunction to prevent nuisance and annoyance, when a criminal behaviour order is issued, the caring responsibilities of the person against whom the order is made should be taken into account by a court. Such responsibilities could be for a child or for any other individual. That is entirely consistent with the Government’s much broader agenda of ensuring that antisocial behaviour is nipped in the bud and that it is not perpetuated from generation to generation. Should the Bill receive Royal Assent, if a criminal behaviour order is made against an individual, the court granting the order would be obliged, under the amendment, to take caring responsibilities into account, in particular for children. Someone against whom an order is made could have commitments relating to children that are important for their life chances and those commitments should be respected.

David Hanson: Will the hon. and learned Gentleman give way?

Stephen Phillips: I am happy to give way to my near office neighbour.

David Hanson: I glanced at amendment 50 in haste, and now realise that it is related to amendment 1, which we supported, so I would like to offer the hon. and learned Gentleman our support for the principle behind this amendment.

Stephen Phillips: I am extremely grateful for the Opposition’s support; whether it will be needed, I know not. However, I hope that the Government, having not caused the Committee to divide on the like amendment to clause 1, will not cause us to divide on this amendment, for the same reasons. It is entirely appropriate that part 2 is consistent with part 1 in the form in which it will be reported to the House.
The amendment is designed to be helpful. I hope that the Government agree, and also that they think it is sensible and improves the Bill. For those reasons, it is not a probing amendment and, if necessary, I will push it to a vote in due course.

Damian Green: It is always a pleasure to serve under your chairmanship, Mr Dobbin. I thank the right hon. Member for Delyn for his kind words of introduction, and particularly for the tone of this group of amendments, which, I agree, ask perfectly reasonable questions about the intent and detail of the measure. After I have dealt with the right hon. Gentleman’s amendments, I will turn to amendment 50, which my hon. and learned Friend the Member for Sleaford and North Hykeham tabled.
As the Committee has heard, the amendments would change the circumstances in which a criminal behaviour order can be made, as well as aspects of the process for doing so. Amendment 28 would allow the order to be applied to cases where the offender and victims live in the same household. The criminal behaviour order has been developed to tackle the most serious antisocial behaviour blighting communities and victims within such communities. It is not intended to protect victims from offenders in their own homes. It goes without saying that all Committee members would abhor such behaviour, but it is important to be clear about the type of offending behaviour that we are seeking to address with these measures.
I appreciate that the right hon. Gentleman produced a number of perfectly plausible scenarios. In those sorts of domestic cases, several different risks and issues would need to be addressed, possibly with highly complicated underlying problems needing specialist experience. As such, it is not appropriate for them to be dealt with under the Bill. As he said, there is already specific legislation to deal with offending of that sort, such as the Family Law Act 1996 and the Protection from Harassment Act 1997.
The principle that antisocial behaviour powers are not designed to address domestic abuse also underpins existing antisocial behaviour legislation, which is clear that orders such as ASBOs are not designed to tackle offenders who live with their victims.

David Hanson: Will the Minister explain under what circumstances the example that I gave about Mr Fraser would be examined in future? Presumably he has had an ASBO, lives in a household and was offending against people in the same household. Will the Minister clarify that point?

Damian Green: I was going to come to Frankie Fraser later, but I will do so now, if the right hon. Gentleman likes. The court will decide on the ASBO as it will obviously be working under the existing legislation. I do not know all the specifics so am reluctant to comment in detail. However, given that the court will have applied the current law, which uses the same language in respect of persons in the same household, it will have decided that the offender is not part of the same household. There are fairly obvious examples, such as what we call a house of multiple occupation. If there are locked doors, so that everyone has their own dwelling within that building, the courts would not regard that as a single household.
The right hon. Gentleman asked about the definition of a household, which goes to the heart of the debate. Interestingly, that concept that has never been defined in legislation, so every case is taken individually by the courts. In practice, they have to consider it on a case-by-case basis. Given that we could all produce a number of potential scenarios as to whether people are living in the same household, it is sensible for the courts to be responsible for the assessment, because every case will have slight wrinkles and differences.
As the right hon. Gentleman said, an ASBO was decided by the court to be appropriate in the case of someone living in a care home. Clearly, having it done in that way—providing courts with flexibility—means that, if a court decides that a particular measure on antisocial behaviour can be applied to someone, even though all they are doing is causing distress to people in the same building as them, it can use that legislation. The intention is that that reads across to the new legislation.
The right hon. Gentleman asked specifically about what legislation is available to deal with antisocial behaviour in the home. I have mentioned a couple of measures already, and I will provide the Committee with some more detail, which I think would be helpful.
Under the Protection from Harassment Act 1997, harassment is broad enough to cover events in the home. There is a criminal offence of harassment, as well as the possibility of taking out a civil injunction preventing harassment, breach of which constitutes a criminal offence. The Family Law Act 1996 contains two remedies—a non-molestation order, which is an injunction that prevents domestic violence-related behaviour, breach of which is a criminal offence; and an occupation order, which allows for a perpetrator of domestic violence to be excluded from their own home.
The right hon. Gentleman raised a point in another context about involving the police. As he knows, there will be occasions when the police need to act quickly to arrest a person if there is risk of imminent harm. They can do so under breach of the peace provisions. There is a suite of measures to deal with the various types of difficult situation that he mentioned.

David Hanson: The point that I am particularly interested in relates to clause 21(5)(b), which
“requires the offender to do anything described in the order.”
I understand that the police can act and that there is current legislation, but I am most interested in the power to make requirements under the order. In a household context, there may still be issues to do with criminal intent and a conviction for an offence such as assault or theft in the house. If a criminal behaviour order is also applied, there is potentially a requirement for offenders to do something about their behaviour in some way, shape or form. That aspect is what I am most interested in, because that would help stop repeat offending.

Damian Green: Indeed. Precisely because there is the possibility of including particular behavioural changes as part of the order, one can imagine that an alcoholism treatment scheme or something like that would be relevant. We see that as a strengthening of the system. That will be a practical measure that can be used. The courts can then monitor whether the person subject to an order is obeying the conditions that have been applied, which is a further potential sanction. I hope that practical measure will lead to changes of behaviour and a reduction in offending.
In cases where there is a criminal conviction, it is important to ensure that the lines between tackling antisocial behaviour and domestic violence are not blurred, due to the serious nature of the offending. I appreciate the right hon. Gentleman’s argument for a consistent approach in the Bill, and I am happy to look at some of the detail. He has said that he does not intend to press the amendment to a vote, for which I am grateful. I assure him that we will keep the detailed points that he has raised under close consideration.
Amendment 29 would require additional consultation with neighbourhood policing teams where the offender is under 18. I am not particularly persuaded that there is a need to prescribe who should be consulted in such a way. The Bill has been drafted deliberately without a long list of statutory consultees to keep bureaucracy to a minimum and to allow local agencies to act quickly and flexibly, depending on the specific circumstances.
There is only one exception to that, which is where the offender is under 18 and there is a clear need to seek the views of the local youth offending team. Obviously, that is to ensure that the young person’s needs are properly taken into account when the court considers the case for an order. I hope it will reassure the right hon. Gentleman to know that, in practice, the police will already be directly involved in CBO cases, since the order is available only following a criminal conviction. In many cases, the police themselves will have prompted the application by the Crown Prosecution Service, so, as such, the local neighbourhood policing team will in many cases have been involved in the case.
Guidance will be clear on the need to engage with a number of partners. Ultimately, it will be up to the prosecution to decide, in any given case, who those are depending on the individual circumstances of the case.
Amendment 30 would require the court to take into account an assessment of the offender’s religious beliefs and their work or schooling commitments as opposed to requiring it to avoid conflict or interference with such beliefs and commitments. I think that subsection (9) adopts the right approach. It mirrors provisions in sentencing legislation on community penalties. It is entirely right that, as far as practicable, any prohibitions or restrictions do not conflict with the offender’s religious beliefs. The right hon. Gentleman gave some examples. In practice, it should be perfectly feasible to apply appropriate requirements and prohibitions, which are compatible with an offender’s religious beliefs.
The right hon. Gentleman also mentioned work or educational commitments. It is self-evident that education and employment are critical to reducing reoffending, so any prohibitions or requirements that get in the way of such commitments may well be self-defeating. In both cases, a duty to avoid a conflict or interference is entirely appropriate and reasonable and should not be weakened, as amendment 30 would do.
The right hon. Gentleman reasonably asked what is to stop an offender making spurious claims about religious beliefs or education commitments that would enable them to avoid any of the sanctions that the order is meant to bring about. The short answer is that an individual would have to produce evidence to the court in relation to those commitments, and only where a court is satisfied that sufficient evidence has been produced will it consider compatibility between the criminal behaviour order and the claimed commitments. I think that we can trust the courts to recognise spurious evidence when it is put before them.
Amendment 50, in the name of my hon. and learned Friend the Member for Sleaford and North Hykeham, mirrors an amendment that the Committee made to clause 1 on Tuesday. As my hon. Friend the Minister for crime prevention said, the Government’s view is that the list in subsection (9) is not intended to be exhaustive. It identifies those matters that are particularly germane to the court’s deliberations on what prohibitions and requirements are appropriate to include in an order. We accept that there will be other matters that the court will wish to take into account, such as the offender’s caring responsibility or any disability. In some cases, there will undoubtedly be other things to take into account.
It was for that overall reason that my hon. Friend the Minister for crime prevention advised the Committee on Tuesday that clause 1(5) and, by extension, clause 21(9) should not be amended. However, the amendment was agreed by the Committee. That having happened, I will not now oppose amendment 50, as it simply seeks to make the equivalent change to clause 21 and therefore introduces consistency throughout the Bill. However, I should make it clear that it is, if I may step gingerly into legal terminology, without prejudice to our further consideration of this issue, and we may wish to return to it on Report.
I know that the right hon. Member for Delyn wishes to withdraw his amendment and I am happy to reassure him again that we will reflect on the points that have been raised in relation to amendment 28. If my hon. and learned Friend the Member for Sleaford and North Hykeham seeks to press amendment 50, I invite the Committee to agree it, subject to the caveat that I have just set out.

David Hanson: I thank the Minister for his response. I take it from his comments that although he does not accept amendment 28, he recognises that there is an issue to be addressed. I will attend carefully to what he says, because I know how these things work. If he wants to reflect on the proposal, I will be happy. Including the provision would take nothing from the Bill; it would simply mean that individuals in the home who have caused harassment, alarm or distress could have a criminal behaviour order placed on them.
The Minister indicated that the order was meant for very serious cases of antisocial behaviour, but I put it to him and his officials that serious antisocial behaviour can take place in the home or be associated with it. Even if only one or two orders were issued a year, deleting the words in the clause would not cause a problem; it would simply mean that an order was available if such cases arose.
The current definition of elder abuse, which is recognised by Her Majesty’s Government, the World Health Organisation and countries across the world, states that it is
“a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.”
At the moment, there is no meaningful legislative provision on elder abuse; a range of things are dealt with in the Mental Capacity Act 2005 and other measures, but there is nothing specifically on elder abuse.
I am not saying that a criminal behaviour order is always applicable in such cases, but there could be occasions when antisocial behaviour in the home was such that it caused harassment, alarm or distress, as in subsection (3). However, because the Bill refers to persons
“not of the same household as the offender”
a criminal behaviour order could not be applied. I am not saying an order has to be applied; I am simply giving the Minister a menu of potential options. The deletion of those words would, I hope, strengthen the Bill, without undermining any part of it.
I take it that the Government will at least examine the issue. We may return to it on Report if they do not; indeed, it can be discussed in another place if the Government do not consider it on Report. It may not surprise the Minister to know that Labour Members in another place can table an amendment and push it to a vote if the Government do not consider the issue.
On the other issues I raised for discussion, I take on board what the Minister says. I am pleased that he has accepted the amendment tabled by the hon. and learned Member for Sleaford and North Hykeham. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 50, in clause21,page11,line39,at end insert—
‘(aa) any conflict with the offender’s caring responsibilities including, in particular, any caring responsibilities for a child.’.—(Stephen Phillips.)

Clause 21, as amended, ordered to stand part of the Bill.

Clause 22

Proceedings on an application for an order

David Hanson: I beg to move amendment 31, in clause22,page12,line13,leave out subsection (2).
I hope the amendment will not take up too much of the Committee’s time. I was going to raise the issue in questions on clause 22, but I tabled the amendment to focus our debate in case there were other amendments.
Subsection (2) states:
“It does not matter whether the evidence would have been admissible in the proceedings in which the offender was convicted.”
That relates to the proceedings on an application for an order. Subsection (1) states:
“For the purpose of deciding whether to make a criminal behaviour order the court may consider evidence led by the prosecution and evidence led by the offender.”
Will the Minister define what circumstances and issues would be raised that were not admissible in court? There are potentially issues the offender would not know about, and which might not have been admissible in court. I want to get a flavour of how that aspect of the clause will work in practice.
Subsection (2) essentially means that the application will be determined not only by what happened in court, which is public and before the offender and the prosecution, but by background evidence. I accept that that is probably necessary and will be based on reports from probation and others as part of a general duty, but I want the Minister to give us his understanding of the meaning of clause 22(2). He will undoubtedly have some thoughts to share with the Committee.
I do not want to press the amendment to a Division; I simply want clarification from the Minister, so that when the Bill becomes law and subsection (2) is exercised, there will be clarity for those who interpret it in real life at some future date.

Stephen Phillips: I am interested to know why subsection (2) is in the clause, so I am grateful to the right hon. Gentleman for moving the amendment.
Dredging back into the dim and distant past, in criminal trials there is something called “similar fact evidence”, which is evidence of the propensity to commit the offence with which someone has been charged. It is generally inadmissible, because its prejudicial effect on a jury is considered to be outweighed by its probative value. Will the Minister say whether this is one of the situations that subsection (2) might deal with?
Although such evidence would not be admissible by the prosecution for the purposes of attempting to secure a conviction, it would be admissible for the purposes of trying to obtain one of the orders. That may be the mischief at which subsection (2) is directed, or it may be directed at some other mischief. Will the Minister indicate that, so that there is clarity for those who will have to interpret the legislation?

Damian Green: The short answer to my hon. and learned Friend’s question is broadly yes. I will explain in detail, and I will address the question asked by the right hon. Member for Delyn.
The purpose of the clause is to deal with proceedings on application for a criminal behaviour order. When deciding on an application, the court can consider evidence from both the prosecution and the offender. The point is that that can include evidence that was inadmissible in the criminal proceedings in which the offender was convicted.
The criminal behaviour order is civil in nature, so hearsay evidence, which would not be admissible in criminal proceedings, can be presented. That means that evidence from vulnerable or frightened witnesses can be presented to the court by a third party—for example, a police officer or a housing officer. The approach has already been used by courts considering an ASBO following a conviction.
It is important that the court is aware of wider relevant behaviour to make an informed decision on whether granting such an order is appropriate. On every occasion, it will be for the court to decide whether the particular hearsay evidence is admissible or relevant. The clause provides the court with that opportunity.

Stephen Phillips: I do not necessarily expect an answer straight away, but will the Minister tell the Committee, either now or at some point, whether hearsay gateways will have to be satisfied before such evidence is admissible for the purposes of subsection (2)?

Damian Green: I believe not, but if my hon. and learned Friend requires a more detailed answer, I will certainly provide him with one and make it available to the Committee.
Broadly speaking, the new order directly replaces the ASBO on conviction. As the Committee will be aware, the House of Lords confirmed in the case of McCann that hearsay evidence is admissible in applications for ASBOs, and is therefore used in proceedings. The subsection does not break new ground, but simply affirms the approach that the House of Lords took, which is also well known to the courts, the Crown Prosecution Service, the police and councils that prosecute antisocial behaviour in the courts.
As I said, there is a good reason for allowing hearsay evidence in those cases: it concerns the protection of victims and witnesses. An individual who received a criminal behaviour order would be a criminal, because they would have been charged, prosecuted and convicted for a criminal offence. The CBO would therefore, in the main, be used against the most serious offenders.
Some victims and witnesses of antisocial behaviour are frightened or intimidated about giving evidence in court, and coming face to face with the offenders. If hearsay evidence is admissible it means the court can permit evidence from frightened or intimidated witnesses to be given in a written statement, or by a police officer or other professional. Hearsay and professional witness evidence allow those victims and witnesses to give evidence against perpetrators while minimising the distress and anxiety caused. As I said, it will be a matter for the court to judge the proper weight to be given to any hearsay evidence.
The effect of the amendment would be that protection for vulnerable victims and witnesses would not be available, and there would be a danger that that would deter them from coming forward and pursuing cases, for fear of reprisals. It would weaken the powers and I am sure that the Committee would not want that to happen.

David Hanson: I am grateful to the Minister for that explanation. I hope he appreciates that I tabled the amendment for clarity and simply to tease out the points he made. I am also grateful to the hon. and learned Member for Sleaford and North Hykeham for his contribution, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.

Clause 23  - Requirements included in orders

David Hanson: I beg to move amendment 44, in clause23, page13,line29,at end add—
‘(7) The Secretary of State shall produce guidance on the scope of requirements that can be used under this section.’.
Clause 23 provides what we have already discussed—the ability to include requirements in orders. I welcome the broad principle of such requirements. Under clause 21(5)(b) an offender can be required
“to do anything described in the order.”
That, effectively, is a requirement.
I have scoured the Bill with some interest, but have not yet seen any guidance or direction about what the requirements might be. I have a very good idea that they will be alcohol or drug treatment orders, behaviour management orders, or a range of things. There could be all sorts of potential orders, but there is no definition. The amendment would require the Secretary of State to produce guidance on the scope of requirements imposed under the clause.
My first question to the Minister is about what he is willing to accept in principle. The menu of guidance requirements might differ between Ashford and north Wales, or Ashfield and Macclesfield—that was quite poetic, was it not? Does the Minister accept that although things may be different depending on the part of the country, there should still be a menu of requirements: something where the Home Office says, “We are putting a box round these requirements, and they are the ones that can be used,” to provide guidance as to what requirements would be imposed in Macclesfield, Ashfield, Ashford or Delyn in north Wales? At the moment it seems that the Minister is saying that orders will include requirements, which it will be possible to use under clause 21, but he has not defined them.
I would therefore welcome, first, an “in principle” from the Home Office as to whether it intends to issue guidance about the requirements. In many ways, our discussion mirrors the one that we will have later in our deliberations on new clause 1 tabled by Government Back Benchers. It is the same principle. I would welcome a view on whether the Home Office intends a laissez-faire requirement—“Do what you want locally, however you want to do it”—or whether there will be some central guidance, with a menu of options and quality standards, saying, “You can pull from these what you will at local level.”
Secondly, what assessment has the Minister or the Home Office made of the use of the orders downstream? I fully expect that at some point in the next 12 months, they will become law in some shape or form, and criminal behaviour orders will become an option for the courts. In his impact assessment, has the Minister given a figure for the potential number of criminal behaviour orders? What assessment has he made of the requirements? Does he understand what the requirements might be, because the court will be providing them? Presumably, at some point downstream, the probation service, a voluntary organisation or someone else will be involved with such an order, so what assessment has he made of their capability and of the deliverability of the order if the court orders alcohol prohibition or drug treatment? What assessment has he made of the cost of the requirements downstream, because presumably the option is not cost-free?
If a criminal behaviour order under clause 21(5)(b) requires the offender to do something described in the order, presumably someone has to deliver it at some cost, at some place, and with some staff, because it has to be monitored, examined and organised. I am trying to be helpful, but I want to get from the Minister what guidance he is planning, if any. If not, why not? Even if in the first year of operation, we have only one criminal behaviour order in each constituency in the whole of England and Wales—if we take off Scotland and Northern Ireland—that means about 580 criminal behaviour orders. That would be only one in each constituency, but there might be 500 requirements in the first year. Who provides the requirements? Who monitors them? Who provides the cost of them? Who delivers them?
Requirements are a good idea, and I am asking these questions not to trip the Minister or to put blocks in the way but because I want an understanding that there will be some action when the court does something, if we pass the legislation and the courts exercise the requirements under clause 23. There is no point our sitting in Committee for the next couple of hours talking through clauses 21, 22, 23 and 24 if, ultimately, when the requirements are issued, there is no capacity to deliver them. I want to get a sense from the Minister of whether the system is laissez-faire. If not, what guidance is there? If there is no guidance, what is his assessment of the impact of the requirements in due course?

Damian Green: As the right hon. Gentleman said, in amendment 44, he is seeking to ask whether we will produce guidance on the scope of the requirements that might be included. The answer is a straightforward yes.
It is right that we develop guidance to help those on the front line who will be using the new powers. Obviously, we will continue to work with agencies to do just that. We do not need to require guidance in the Bill, but I am happy to assure the Committee that we will provide it—legislation often requires detailed guidance to practitioners. We are committed to providing such guidance, which would apply to all the new antisocial behaviour powers in the Bill. It is not worth stating it in the Bill because that would clutter the measure.
It is intended to make the guidance available before Report so that it can be properly discussed by the House. I suspect that the right hon. Gentleman and I will slightly part company about how prescriptive we want it to be. The requirements that may be attached to a criminal behaviour order are a matter for local determination. I would not want to give the impression that our guidance will set out the full menu of possible requirements.

David Hanson: I think the Minister will accept that the previous Government, rightly or wrongly, set a number of requirements that could be used with such orders without giving specifics about how they would be delivered. They referred to a possible alcohol treatment requirement, or drug treatment requirement and so on. Does the Minister intend to give a brief headline on the scope of the requirements that could be included under clause 23?

Damian Green: The guidance will obviously have to give indications of what might be available. Every order needs to be tailored to the individual circumstances of the offender and matched to the services that are available locally. We want agencies to think innovatively about what will work for their communities. We want people to experiment and come up with new ideas. We do not believe that all wisdom resides in central Government. I would not want the guidance to stifle local initiative. I invite the Committee to reflect that that is a sensible way forward.
The right hon. Gentleman asked for details of what we expect will happen. If he rereads the full impact assessment, he will find this issue addressed specifically on page 10. As he knows, the current trend of ASBOs on conviction is declining. We assume that the volume of criminal behaviour orders will follow the same trend because of the broader factors that limit the use of such orders on conviction and the trend among practitioners towards using informal measures to tackle the majority of antisocial behaviour. Clearly, one can come up with several scenarios about future numbers. It would be wrong to weary the Committee with the full costs included in tables E3 and E4 of the impact assessment, but I commend it as a good read.

David Hanson: It will come as no surprise to the Minister that I have read the impact assessment. I would welcome his putting on the record his assessment of the usage of criminal behaviour orders in the first, second and third years. That could give an idea of the number of requirements that will be included.

Damian Green: It would be wrong for me to go beyond what is in the impact assessment, which makes it perfectly clear that the trend is downward. There is a range of scenarios. I am less wedded to specific, centrally driven targets than the right hon. Gentleman. I do not propose to set one. All those issues are discussed in great detail in the impact assessment. It is clearly a legitimate area for debate, but setting targets for requirements either nationally or in each area would not be right.
The right hon. Gentleman also asked about funding. Local areas already fund a range of supportive activity, inevitably. The new orders will enable councils and others to use those resources more effectively in a tough financial climate by making that support compulsory, rather than optional, where an individual’s behaviour is harming others. We intend that agencies will indicate any support that they believe is necessary and available as part of the application process. We do not intend that the court should be able to impose positive requirements on agencies. There will be significant local discretion because in different areas, different types of services will be available. Indeed, in different areas, different types of services will have proved effective. With that explanation, I hope that the right hon. Gentleman will withdraw the amendment.

David Hanson: Perhaps I am too easily pleased. I heard the Minister say that he will issue guidance, which will be produced at some point. Perhaps—dare I say it—he may be kind enough to send me a copy so that I can scan it and think of some parliamentary questions to ask him in due course. I accept his assurance on that, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clauses 24 and 25 ordered to stand part of the Bill.

Clause 26  - Variation or discharge of orders

David Hanson: I beg to move amendment 45, in clause26,page14,leave out line 19.

Jim Dobbin: With this it will be convenient to discuss the following:
Amendment 46, in clause26,page14,line21,leave out subsection (2).
Amendment 33, in clause26,page14,line27,leave out from ‘order’ to end of line 28.

David Hanson: The three amendments intend to get clarity from the Minister on the circumstances whereby the powers under clause 26 will be exercised. The clause states:
“A criminal behaviour order may be varied or discharged by the court which made it on the application of—
(a) the offender, or
(b)the prosecution.”
It goes on to say:
“If an application by the offender under this section is dismissed, the offender may make no further application without—
(a) the consent of the court which made the order, or
(b) the agreement of the prosecution.”
Subsection (3) says that if the prosecution makes a request that is dismissed, there may be no further application without the agreement of the offender.
I would like some clarity on that. The offender is an important part of the process: they have committed an offence, they have been convicted and, under the Bill, they will have been given a criminal behaviour order either prohibiting them from doing anything described in it, as stated in clause 21(5)(a), or requiring them to do what is described, as stated in clause 21(5)(b). Variation might be necessary, but in what circumstances does the Minister believe that the offender might make an application for an order to be varied or discharged, and how will they do that? Furthermore, what safeguards are there to ensure that there will not be a malicious approach in terms of the offender’s behaviour?
I understand and accept that there might be a change in circumstances; for example, the offender’s job might change, their child might be sick or have long-term illness, or they might have a caring responsibility, as the hon. and learned Member for Sleaford and North Hykeham, among others, mentioned earlier.
It would be helpful if the Minister outlined his understanding of the circumstances whereby an offender could apply for a variation, and those whereby, under subsections (1), (2) and (3), the engagement of the offender is most appropriate. Again, I do not mean to cause the Government difficulty, but I think that those interpreting the Bill should understand at some point exactly what the offender’s rights are under the clause, so that the approach is not malicious and the circumstances that the court can take as reasonable are defined as far as practicable if, as we have discussed, there are family, work or other reasonable changes in circumstances.
Rather than simply passing the legislation, I would welcome it if something were read into the record giving direction about the circumstances in which the offender can seek to vary or discharge the application. I say that because clause 26(1) says:
“A criminal behaviour order may be varied or discharged by the court which made it on the application of the offender”.
Without debate—we agree with the proposal—we have just agreed that, under clause 24, an order must be fixed for a period of not less than one year and not more than three years. If we are considering varying that, it is a serious length of time, and there is no clarity in clause 26 about what the circumstances should be.
I accept, as I said, that numerous circumstances could lead to that, but at the moment, variation or discharge of a serious order on application of the offender is left to the court, which could make any decision that it likes, because there is no specific guidance in clause 26 on what that variation should be. I hope that the Minister can give some details of his view on that.

Damian Green: I will deal with the right hon. Gentleman’s general points, and then with the effects of the specific amendments. As he says and as the Committee can read, clause 26 allows both the offender and the prosecution to apply to the court to vary or discharge an order. It is obvious that, in certain circumstances, there may be a need to change the order.
To deal with the right hon. Gentleman’s specific questions, such an application may be made when the order is considered no longer necessary, as the root causes of the offender’s antisocial behaviour have been tackled. For instance, if it was caused by a drug problem and he or she has gone on a successful drug treatment programme, clearly, there is no point in continuing the order. It may also be necessary to change the order when the offender’s personal circumstances—for example, their address—have changed, or if an emerging health issue affects the requirements in the order.
The clause makes it clear that the court’s power to vary an order includes the power to add prohibitions or positive requirements, or to extend the time for which such conditions have effect. The rules governing those positive requirements, as set out in clause 23, will apply to any new requirements.
The provision ensures that criminal behaviour orders are sufficiently flexible to respond to changes in circumstances, but it is equally important to ensure that we do not create a burden of vexatious applications. Subsections (2) and (3) therefore provide that, where the court dismisses an application to vary an order, no further application can be made by the same applicant without either the consent of the court or the agreement of the other side.
The right hon. Gentleman asked, perfectly reasonably, what safeguards exist. The safeguard is the consent of the court, which is needed for any further application once a first application is dismissed, and the decision to vary or discharge rests at all times with the court.
Amendments 45 and 46 would remove the option for the offender to apply to vary or discharge an order, meaning that applications would be solely at the behest of the prosecution. For the reasons that I have given, I do not think that that would be right. A criminal behaviour order can be in place for a significant period. For an adult, it can be indefinite. An offender’s personal circumstances may change substantially while the order is in place, which would warrant a change to the prohibitions or requirements. There will be occasions when an offender has genuinely changed and they need to be able to go back to the court and demonstrate that the change is substantial and permanent.
I hope that I have answered the right hon. Gentleman’s questions about the circumstances in which we envisage the power being needed and that he will withdraw the amendment.

David Hanson: My objective was simply to get the clarification that the Minister has provided, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 ordered to stand part of the Bill.

Clauses27 and 28 ordered to stand part of the Bill.

Clause 29  - Breach of order

Question proposed, That the clause stand part of the Bill.

David Hanson: I did not table an amendment to the clause as I want only to test the meaning of three words in subsection (1): “without reasonable excuse”. It is important that the Minister puts on the record what he regards as a “reasonable excuse,” because a breach of an order is a serious offence. Breaching an order could lead to up to six months in prison, a fine or both. If convicted on indictment, an offender could face up to five years in prison, a fine or both.
Clause 29(1) states:
“A person who without reasonable excuse—
(a) does anything he or she is prohibited from doing by a criminal behaviour order, or
(b) fails to do anything he or she is required to do by a criminal behaviour order,
commits an offence.”
A definition may already exist, but can the Minister define what is meant by “without reasonable excuse”? Is it is a reasonable excuse to say, “I missed the bus”? Is saying, “My child was sick,” a reasonable excuse? Is it reasonable to say—with or without medical proof—“I felt ill this morning”? Is it reasonable to say, “I was asked to do overtime at work and so I didn’t turn up” or “I had a prior engagement that I didn’t tell the probation officer about. I went to Cardiff for a friend’s birthday”? What is reasonable to the Minister may be unreasonable to me and vice versa. It would help those who interpret the legislation in future to have “reasonable excuse” defined. Otherwise, we could—dare I say it?—end up with a postcode lottery in courts, whereby what is reasonable in Ashford is unreasonable in Flint in my constituency. What is the Minister’s assessment of reasonableness?

Sarah Champion: I am also mindful of what is reasonable to the victim.

David Hanson: That is a good point. The nature of the orders and of the chaotic lifestyles of the people subject to them often means that such orders are breached. That is part of the business that the Minister is in. Orders may be breached because people have alcohol or mental health problems—there could be a whole range of issues. As my hon. Friend the Member for Rotherham indicated, if a criminal behaviour order were made against somebody in the town of Rotherham, the victim would know it was in place. They might have been to court to see it installed. They might possibly know, because these things happen in towns, that every Wednesday that person is due to go to alcohol rehabilitation to get treatment, and on that particular Wednesday they were not there.
Without delving into the detail of my hon. Friend’s comment, community confidence is about the orders being seen to be enforced. “Reasonable excuse” is a matter for interpretation. I simply ask the Minister if he could give us his interpretation.

Damian Green: I am happy in a way to answer that perfectly reasonable question, but I want to make the point that it will not and should not be for me or any other Minister to anticipate what the courts will decide in any individual case. However, I am happy to give the right hon. Gentleman a broad indication. The basic point is that what constitutes a reasonable excuse is a matter for the courts.
The right hon. Gentleman and I part company where he used the phrase “postcode lottery”, which I seek to avoid. It seems to me that if one is in favour of devolving power from the centre to localities, one inevitably gets different decisions about what is acceptable or appropriate for different communities. People reach for the phrase “postcode lottery” in those circumstances, but it may actually be a good thing that people in Flint regard something as more or less serious than people in Ashford. A philosophical debate has been had about such matters over the centuries, but this Committee is not the place to continue it.
What counts as a reasonable excuse is ultimately a decision for the courts. It could include a family bereavement, a serious accident that requires hospital treatment, or any other last minute, unavoidable circumstances. “Unavoidable” is the word I stress. If somebody gets up and does not feel like fulfilling their obligation because they were drinking the night before, the right hon. Gentleman and I—and, I suspect, every court in the land—would agree that that is not a reasonable excuse for failing to fulfil an obligation. Something last minute, very serious and unavoidable is the sort of thing I would expect the court to regard as a reasonable excuse.
Of course, we expect the police, when they are considering whether to make an arrest, and the courts to be proportionate in their use of the term. Given that both those parts of the criminal justice system are extremely experienced at knowing when and how to act, we can put our trust in them. They will know what a reasonable excuse is in the individual circumstances that are brought up in a particular case.

David Hanson: Again, I was not trying to cause the Minister difficulty, but I feel it is important that some guidance is given about what will, in due course, be a legal document, which will be interpreted by courts across the country. That was my sole purpose in raising the issue.

Question put and agreed to.

Clause 29 accordingly ordered to stand part of the Bill.

Clauses 30 and 31 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Mr Syms.)

Adjourned till this day at Two o’clock.